SOMAWATHIE v. MANGALIKA

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SOMAWATHIE
v.
MANGALIKA
COURT OF APPEALJAYAW1CKRAMA, J.
A.L.A. 5/98 (LG)
C. GALLE 387/RENOVEMBER 29, 2000FEBRUARY 16, 2001
Rent Act 7 of 1972 – S.22( 1 )(d) – Eulctlon-using premises for Illegalpurposes – Is Notice oj Termination of tenancy necessary ?
Held :
(1) There is no requirement that Notice should be given when a case isinstituted according to the provisions of S.22(l)d.
When the Plaint states that he was convicted that conviction itselfsuffice to file an action for the ejectment of the tenant.
With the conviction of the tenant the tenancy agreement comes to anend. The conviction itself can be regarded as a termination of thetenancy agreement.
APPLICATION for Leave to Appeal from an order of the District Court of
Galle, leave being granted.
Cases referred to :
K. T. H. Pierls v. M. D. Fernando – 78 NLR 206 – Distinguished
D. Thanglah u. M. Yoonus – 76 NLR 183
Wlmalasuriya v. Ponntah – 52 NLR 191
Saliya Pierls with Upul Kumarapperuma. for Substituted Defendant
Petitioner Appellant.
Manohara R. de Stlva with Ms. Devlka Samaranayake for Plaintiff
Respondent.
Cur. adv. vult.
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Somawathle v. Mangaltka
(Jayawlckrama, J.)
9
March 23, 2001.
JAYAWICKRAMA, J.This is an application for leave to appeal against theorder of the learned Additional District Judge of Galle dated
12. 1997.
The Plaintiff-Respondent filed an action against theSubstituted Defendant-Petitioner’s Husband for ejectment fromthe premises described in the schedule to the petition allegingthat he had used the premises for illegal purposes. The Respondentsought to eject the Petitioner in terms of Section 22( 1 )(d) of theRent Act. The Defendant while denying the said allegations inhis answer took up the position that the monthly rent agreementwas not lawfully terminated by the Respondent and that he isnot therefore entitled to institute or continue the action. Thetrial commenced on 26"’ August 1997 on which date admissionswere recorded and issues were raised. The 4th issue raised bythe Petitioner was as follows :-
‘Is the Plaintiff entitled to pursue this action without lawfullyterminating the monthly rent agreement?”
On 16. 12. 1997 the learned Additional District Judgedelivered his order holding against the Defendant contendingthat Section 22(1 )(d) of the Rent Act did not require notice oftermination of the tenancy.
When .this application was mentioned on 02. fl. 1998, itwas brought to the notice of this Court that the Trial Judge hasfailed to consider the judgment of the Supreme Court -K.T.H.Pierls v. M. D. Fernando111, and that he has only referred to thejudgment of Wijayatilake, J. in D. Thangiah v. M. Yoonus121. TheCourt granted Leave to appeal on the basis that there' is aquestion of law involved.
The learned Counsel for the Petitioner-Appellant submittedthat although Section 22(1 )(d) of the Rent Act does not specifythat a notice is required to terminate a monthly tenancy, it is
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supplemented by common law which requires that a month'snotice be given to the tenant in terminating a monthly tenancy,and without such a termination a party cannot come toCourt to seek ejectment. The learned Counsel contended thatin K. T. H. Petris u. M. D. Fernando(Supra) the Supreme Courtheld that the Plaintiff is not entitled to come before Court for anejectment unless he has given a valid notice of termination ofthe contract of tenancy. He further submitted that this Court isbound by the above judgment. He further submitted that if aparty fails to comply with the provisions set out in Section 22( 1)of the Rent Act, the innocent party should follow the properlegal procedure to terminate the monthly rent agreement andthat a cause of action arises only when the landlord for lawfulreasons terminates the monthly tenancy agreement and thetenant refuses to quit. He contended that such a terminationnecessarily requires notice be given to the tenant, and that acause of action arises only after the landlord has given a validone month notice to the tenant terminating the tenancy. Hefurther submitted that in this case the rent agreement has notbeen made for an illegal purpose, and it was rented out to thetenant for a lawful purpose and hence there is no illegality. Thelearned Counsel.further contended that if the premises had beenused for an illegal purpose then there is a breach of a conditionof the agreement and the landlord could terminate the agreementon that ground but with notice to the tenant as stipulated bythe common law.
The learned Counsel for the Plaintiff-Respondent submittedthat the learned District Judge has correctly answered the issuein the affirmative and that this action is not a common law actionbut an action filed under Section 22(1 )(d) of the Rent Act andthat the Rent Act does not require the Plaintiff to give notice oftermination to the tenant before filing an action under the saidsection 22(1 )(d) of the Rent Act. He further contended that themaintenance of the present action cannot be determined onthe preliminary issue as termination could be done either orallyor in writing and to ascertain whether there was a terminationevidence have to be led. He contended that cessation of tenancy
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Somawathle v. Mangaltka
(Jayawickrama, J.)
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under the common law need not necessarily be in writing as acontract of letting under the Roman Dutch Law need not be inwriting. (Maas Dorf Vol.3 page 208)
Under Section 22(1 )(d) of the Rent Act, “the tenant or anyperson residing or lodging with him or being his subtenant has,in the opinion of the Court, being guilty of conduct which is anuisance to adjoining occupiers or has been convicted ofusing the premises for an immoral or illegal purpose anaction for the ejectment of the tenant could be instituted. Section22 of the Act provides for giving of notice where notice is required.There is no requirement that notice should be given when acase is instituted according to the provisions of section 22( 1 )(d)of the Act. When one carefully reads the wording of Section22(1 )(d), it is clear that when the tenant or any person residingor lodging with him has been convicted of using the premisesfor an immoral or illegal purpose, he automatically dis qualifiesto be the tenant and the tenancy agreement extinguishes itselfon his conviction. The conviction here means a conviction by aCourt of Competent Jurisdiction. When the plaint states thathe was convicted by a Court of Competent Jurisdiction, thatconviction itself suffice to file an action for the ejectment of thetenant. With the conviction of the tenant, the tenancy agreementcomes to an end. The conviction itself can be regarded as atermination of the tenancy agreement.
As submitted by the learned Counsel for the Defendant-Petitioner-Appellant, in K. T. H. Pelrts v. M. D. Fernando (Supra)it was held that:
"Section 22(1) presupposes a cause of action whichcan only be constituted when the landlord for lawfulreasons severs the relationship of landlord and tenant.Section 22, therefore, deals only with a limitation onthe power of the Court in respect of actions by alandlord to eject the tenant and does not provide aright to come into Court without terminating thetenancy
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According to the facts and circumstances in the above casewhere a person institutes an action on the basis that theDefendant had deteriorated the premises by his acts or neglector default he is entitled to a notice for the simple reason that heshould be aware on what basis the Plaintiff seeks to terminatethe contract. But in the case of a conviction by a Court ofCompetent Jurisdiction for using the premises for an immoraland illegal purpose, there is no necessity for further notice asthe Defendant himself is aware that he has no legal right tocontinue to be a tenant due to his own conduct.
In the above case Wanasundara, J. expresses a similar viewin respect of such a situation. Wanasundara; J. observed :
“In Wimalasuriya v. Ponniahf,3> Basnayake, J. heldthat no notice terminating the tenancy is required inthe case of an unauthorised sub-letting. I find thatthis is undoubtedly correct on a plain reading of therelevant provisions’’. (Vide Peiris v. Dickson Fernandoat page 208,).
The above observation substantiate the argument thatunder Section 22( 1) there are instances where an action couldbe instituted without giving notice, e.g: Unauthorised sub-lettingtenant being convicted of using the premises for an immoraland illegal purpose, etc.
In Wimalasuriya v. Ponniah. (supra) Basnayake. J. (as hewas then) stated :
“Under the common law the landlord is entitled toinstitute proceeding in ejectment against a tenantwho remains in the leased property after thetermination of the lease. A lease terminates eitherby effluxion of time or by notice of termination wherea lease is terminable on notice. Where there is noexpress agreement to the contrary a tenant may underour law sub-let an urban tenement. The act of sub-letting by a tenant of an urban tenement does not
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Somawathle' v. Mangallka
(Jayawlckrama, J.)
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give the Itmdlord the right to cancel the lease andaskfor possession of the premises. It cannot thereforebe scud that the landlord is obliged by the commonlaw to give notice before exercising his statutory rightunder section 9 of the Act (Rent Restriction ActNo. 29 of 1948). Nor does the statute impose anyobligation on him to give notice before proceedingthereunder. A notice of cancellation of the contract oftenancy need not under our law precede every actionin ejectment. A cancellation need be made only in acase where without such cancellation the landlord isnot under the terms of the Zease entitled to demandthe surrender of the premises.
The legislature is presumed to know the law and itcan safely be assumed that if it intended that noticeshould be given before the institution of legalproceedings under Section 9 it would have providedfor it by express enactment, especially as it wasconferring by statute a right which the Icmdlord doesnot have under the common law."
In view of the above judgments and in view of the fact thatSection 22( 1 )(d) has not provided by express terms that noticeshould be given biefore the institution of legal proceedings underthat Section I hold that the learned Additional District Judgehas come to a correct finding in this instance.
The learned Additional District Judge has correctly heldthat notice is not required on the basis of the judgment inD. Thangiah v. M. Yoonus (Supra), Where it was held
“That once Section 12A(l)(d) of the Rent RestrictionAct applies to a case, it supersedes any rights arisingon the tenancy agreement in regard to the period ofnotice to terminate the tenancy."
The learned Additional District Judge in a carefullyconsidered order has accepted the version of the Plaintiff on
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the question of terminating the monthly rent agreement andheld with the Plaintiff that Section 22( 1 )(d) of the Rent Act doesnot require notice and.I see no reason whatever to take a differentview.
As stated by Wijayatilake. J. in Thangiah v. Yoonus (Supra):
“If tenants are permitted to mess up the premisesthey rent out in this fashion and the law turns a blindeye to such destruction, ultimately, well conductedtenants will stcmd to suffer considerably as landlordswill be slow to rent out their premises not knowingtheir propensities, not to speak of their cats!”.
The above observation is very much more applicable wherethe tenant has been convicted of using the premises for animmoral or illegal purpose.
I would accordingly dismiss this leave to appeal applicationwith costs fixed at Rs. 5000/- payable by the Defendant-Petitioner-appellant to the Plaintiff-Respondent.
Application dismissed.